Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
In those two virulent dissents, Justice Scalia denounced the court majorities not simply for finding that it was unconstitutional to discriminate based on sexual orientation in cases involving political rights and the right to private consensual sex, but he also made it clear that in his view sex discrimination is not only permitted by the Constitution but is very much in society's interest because homosexuality deserves to be treated with not only disapproval, but legal disability.
In fact, Scalia can be read more charitably to say that many Americans find homosexuality morally offensive and in a democracy, people are permitted to vote for legislation that puts those preferences into law. Judges should not interpret the Constitution to prevent majorities from expressing their moral opposition to (or disgust with) homosexuality.
But Scalia's argument from democracy and judicial restraint begs a more important question. At an earlier point in history, very similar arguments based on democracy and judicial restraint could have been made (and were made) about race or sex discrimination. For example, in the years following the ratification of the Fourteenth Amendment, the Court unanimously held in Pace v. Alabama that states could punish sex between members of different races more heavily than sex between persons of the same race. (The Court argued that the law treated both blacks and whites alike, so there was no race discrimination. The opinion, it is worth noting, was joined by Justice Harlan, who would later insist that the Constitution was colorblind.). And it held by a vote of 8-1 in Bradwell v. Illinois that women could be prevented from being lawyers. The argument for both Pace and Bradwell would be very similar to Justice Scalia's arguments in Lawrence and Romer: Whether or not some people think that such laws are wrong, unelected judges should not interpret the Constitution to prevent democratic majorities from expressing their moral attitudes about race relations and sex roles.
It is worth noting that both Pace v. Alabama and Bradwell v. Illinois are consistent with the original expected application of the Fourteenth Amendment, so that in order to hold the other way one would have to engage in a certain form of what Justice Scalia now dismissively calls "living constitutionalism." Indeed, the Supreme Court did not reverse Pace until 1967 and it did not (in effect) reverse Bradwell until the 1970's.
For a hundred years after the 14th amendment many if not most lawyers would have agreed with the decisions in Pace and Bradwell. Today, however, few people have qualms about labeling the 19th century courts sexist and racist. Which leads me to the following question.
Suppose that someday the social movement for gay rights succeeds in convincing almost all Americans that gays should be constitutionally protected from discrimination (not merely statutorily), in the same way that almost all Americans now agree that women and blacks should constitutionally be free from state mandated discrimination. Would it be fair, in hindsight, to say that people like Justice Scalia, who believe that homosexuals do not deserve constitutional protection from discriminatory laws, are homophobes?
Justice Bradley didn't think he was a sexist when he wrote Bradwell v. Illinois. Justice Field didn't think he was a racist when he wrote Pace v. Alabama. Both believed they were defending the rights of majorities in particular states. But these opinions, and the reasoning in them, are today viewed as almost paradigmatically racist and sexist.
In a world in which Americans think that gays are protected by the Constitution, the claim that they have no constitutional rights that straights are bound to respect must increasingly look homophobic. And this is perhaps the best version of Barney Frank's argument. Frank asserts that gays have constitutional rights against discrimination, and that if most Americans don't believe this now they very soon will. That is, he claims that he is on the side of history and that Justice Scalia is fighting a rear guard action in defense of old, outmoded prejudices that will eventually give way to a different sense of what liberty and equality require. Justice Scalia may be proud that he is defending the old order, equating it with fidelity to original meaning, democracy, and judicial restraint. However, Frank responds, Americans no longer think (or soon will no longer think) that arguments based on original meaning, democracy and judicial restraint can justify discrimination against gays any more than they can justify race and sex discrimination.
Is Frank right? If he is, at what point in history did (or will) Justice Scalia become a homophobe?